I previously wrote about Harvard Law Professor Charles Nesson, who endeared himself to me by throwing a piece of chalk at me during evidence class, and who recently learned in a rather embarrassing manner that United States District Judges expect him to follow, you know, rules and stuff when he appears pro bono on behalf of RIAA defendants. Crazy Charlie, as Nesson is known with some debatable degree of affection, has a flair for the dramatic. Courtesy of Hit & Run, I see that Nesson is indulging that flair in his defense of RIAA defendant Joel Tenenbaum.
The suit filed by the Recording Industry Association of America has yet to go to trial, but Nesson's recent tactics have drawn criticism, even among the association's most outspoken foes. In the past few weeks, he has tape-recorded a telephone conference with a federal judge and opposing counsel, and then – after US District Judge Nancy Gertner of Boston told him to shut it off – posted the record ing on his blog and featured it in a take-home exam on evidence for his students.
Nesson also posted dissenting e-mails from academics he had hoped to call as expert witnesses for the defense but who rejected his legal theory that Joel Tenenbaum had the right to download songs under the fair use doctrine of copyright law. And he put up a four-minute recording of his wife, Fern, a former Harvard law student of Nesson's, denigrating the experts as misguided naysayers and one of Nesson's law students working on the case as a "schmuck."
I think the thing that always rubbed me the wrong way about Nesson was that he seemed to view teaching — and now, it would seem, litigation — as being performance art: something that had some utility to other people, to be sure, but was primarily a vehicle for Nesson's self-expression. That's rather clear from his view on whether he should consult with his client before posting critical emails from experts:
Nesson reacts with mock horror when asked about posting the e-mail messages on strategy – "Oh, my God, this is our secret stuff!" he exclaimed – and he sounds incredulous when asked whether he had Tenenbaum's permission.
"Did he give permission?" he said. "I represent him. I am him. We are one."
It's unbecomingly unreflective for a blogger to accuse anyone else of narcissism, but . . . .
At any rate, it remains to be seen how Nesson's approach will play out in court. The theatre of the absurd is occasionally effective at illuminating the absurdity of something previously considered to be serious. It's entirely possible that the RIAA litigation strategy is ripe for being shown as ridiculous.
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